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# Trial by jury (6-12 jurors) begins and provides a final judgment if a settlement or dismissal has not occurred.
==Definition of Litigation Steps==
: '''Complaint''': Document filed in a district court claiming patent infringement. The complaint identifies who has allegedly infringed the patent and how. Often very vague (hence the Innovation/Patent Act). Complaint will be served to the defendant after being filed. Defendant will then be summoned.
*Complaints can also allege willful infringment of a patent/patents. If the plaintiff
proves willful infringment then the court may award a larger amount of damages to the
plaintiff.
*The plaintiff chooses the District Court to file the complaint. Typically chooses
a district where alleged infringement has occurred or infringing products have
been distributed.
*Factors that play into choosing venues include time in between filing of complaint and
judgement rendered, "experience level of judges", procedural rules, and "sophistication
of jury pool."
: Motion to Transfer: Defendant serves a motion to transfer if the district where the complaint was
filed is not the business's primary working location. Transferring locations enables defendants
to have access to relevant witnesses and documents for discovery.
Answer: Defendants file and serve an answer to the original complaint. The answer typically consists
of a response (denial/agreement) to each asserted claim of infringement in the complaint.
*Affirmative Defense: defendant claims the asserted patent is invalid or unenforceable or
claims non-infringement.
*Equitable Defense: may be included in defendant's answer. Examples are inequitable conduct or
laches. Inequitable conduct alleges that the plaintiff has not been honest and forthcoming
with the USPTO when applying for a patent. Laches protects the defendant from potential bias
and paying damages to the plaintiff, if the plaintiff delayed filing the complaint for no
apparent reason.
*If the answer's claims of inequitable conduct are found to be valid, the asserted patent may
be found unenforceable. The patentee may no longer be able to exclude others from using the patented
idea and will not be awarded damages for use of the idea.
Counterclaims: asserted by the defendant. Claims that the asserted patent has not been infringed or the asserted
patent is invalid. Additionallyt, defendant may assert its own patent against the plaintiff in a counterclaim.
*Plaintiff must file and aserve an answer to the counterclaims.
Meeting of the Counsel: Outlined by Rule 26(f) in Federal Rules of Civil Procedure. Required by law to review
each party's claims and defenses to see if a settlement may be reached without going to trial. Parties must
also discuss what they want to be included in the discovery process and determine a case schedule.
Case Management Process: Following the meeting of the counsel, the judge will set the case schedule based
on the report generated in the meeting of the counsel.
Claim Construction Hearing: Court proceeding that interprets the meaning and scope of each patent claim
asserted in the complaint and answers. Claims are interpreted based on intrinsic evidence (language
of the claims, written exchanges between USPTO and patentee). Claims are interpreted as they would by
any normal person involved in the industry and written in plain language.
Discovery: process of gathering evidence and information about the case by both parties. Disclosure of information
is regulated based on local patent rules, which may vary by judge or district.
*Scope: parties can obtain documents/information related or pertinent to a claim or
defense.
*Number of documents that can be requested has no limits.
*Interrogatories: questions submitted in writing that require a response, limit of 25 per
party.
*Deposition: each party has the right to 10 depositions, access to sworn evidence, without
explicit court permission. Companies may serve in a deposition according to Rule 30(b)(6) of
the Federal Rules of Civil Procedure. A person associated with the company will then testify.
*Limits of discovery are determined based on protective orders of the court. Companies can protect
highly confidential information in this way.
*Third parties may be involved in discovery if subpoenaed.
*Experts often submit expert reports and may be deposed by the opposing party.
Motions occurring Pre-Trial:
*Summary Judgment: occur after a claim construction hearing, party requests the court rules in its
favor without a trial based on the claims. Acceptable when there is no actual issue of infringement.
*Motions to Exclude Evidence (in Limine): heard in the pre-trial conference with the judge.
May Exclude:
# Prior art that was not previously disclosed or disclosure was delayed.
# Expert opinions not included in the expert report.
# Proof that the defendant has its own patents.
*Bifurcation Motion: separates issues in a case into different trials.
Appeals: If the losing party does not agree with the result of the trial, it may submit appeals to the US Federal Court of Appeals.
==Content==
[http://knobbe.com/pdf/2010-December-The-US-Patent-Litigation-Process.pdf]
